2007434 (Refugee)
[2025] ARTA 1523
•8 May 2025
2007434 (REFUGEE) [2025] ARTA 1523 (8 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2007434
Tribunal:General Member V. Hewaarachchi
Date:8 May 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 08 May 2025 at 3:26pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Buddhist faith – gold investment scheme – a bisexual man – sexuality – applicant faces a real chance of serious harm throughout Malaysia – State protection is not available to the applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Act) (Cth), ss 5, 36, 65, 367, 499
Migration Regulations 1994 (Act) (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 12 November 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under s 36(2)(a) of the Act or s 36(2)(aa) of the Act .
The applicant appeared before the Tribunal on 16 January 2025 and 26 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
IDENTITY AND RECEVING COUNTRY
The applicant claims to be a [age] year old, male, citizen of Malaysia. He provided a copy of the biodata pages of his passport and a copy of his Malaysian national identity card to the Department along with the visa application. The Department conducted an identity assessment on 11 December 2019. The Department did not raise any concerns regarding the authenticity of the documents provided by the applicant or the veracity of his claimed identity. I accept the applicant’s identity is as claimed and find that the receiving country for the purpose of this review is Malaysia.
CLAIMS
In his application for a protection visa to the Department, the applicant claimed to fear harm arising from a gold investment scheme which he was allegedly involved in. The applicant abandoned these claims during the review before the Tribunal. The applicant stated that he had paid a person $150 to assist him to complete the visa application forms. He explained that he had only communicated with this person via [social media] and provided them with some personal details. He said that the person had not asked him about the reasons why he feared harm in Malaysia. He said that he trusted the person to apply for a visa and was not aware of the importance of raising his fears of harm on return with that person or the Department. He said that he did not understand the criteria for a protection visa at the time of application. He said that he simply wanted to be away from Malaysia and start a new life without the fear of harm. I accept this evidence of the applicant, and therefore I will not consider the claims advanced in the visa application any further. The applicant was not interviewed by the Department and therefore had no additional opportunity to raise his real claims to fear harm in Malaysia with the Department.
The applicant stated that he was able to advance his real fears of harm in response to the Tribunal’s pre-constitution information request by completing a pre-hearing information form. He explained that once he learned about the nature of the visa, he was able to seek assistance from a friend called [Mr B] who helped him complete the form and return it to the Tribunal. He stated that [Mr B] is a friend who he trusted and therefore he was able to provide details of his real fears of harm to [Mr B]. He stated that [Mr B] explained to him what was written down on his behalf unlike the person who completed the initial visa application to the Department. The applicant claims to fear harm for two reasons in Malaysia:
a.The applicant claims to be a bisexual man and fears harm at the hands of the Malaysian authorities, religious zealots and other Malaysians who may harbour hatred towards people who are perceived to be gay in Malaysia or men who have sex with men in Malaysia.
b.The applicant fears harm at the hands of an ex-partner’s brother who is a high ranking member of a religious Non-Governmental Organisation called [name].
Considering all the evidence before me, I am satisfied that the applicant has provided a reasonable explanation for not having raised the above claims before the primary decision was made and therefore, I do not draw an unfavourable inference to the credibility of the claims as required by s 367A of the Act.
Evidence before the tribunal
In making this decision I have considered all the evidence before the Tribunal including:
a.Response to pre-hearing information request with details of his sexuality and past experiences in Malaysia.
b.Email confirmation of a booking made at night club [Club 1] on 21 December 2020.
c.Several photos of the applicant with a man who he claims was his male sexual partner “[name]” (Mr A) from Sabah, Malaysia, including one where the applicant and Mr A appear to be in a bedroom together.
d.Photos of the applicant at an LGBT [event].
e.[Bank] statements and a screenshot of a recent transaction at the night club [Club 1].
The applicant provided detailed evidence in relation to his past experiences, his sexuality, and his fears of harm on return to Malysia at the hearing. His oral evidence is discussed to the extent it is relevant in latter parts of this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant engages Australia’s protection obligations under s 36(2)(a) Act and/or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The applicant’s life in Malaysia prior to his departure
The applicant claims to be a citizen of Malaysia. He entered Australia using his Malaysian passport, he has provided a copy of passport to the Department, and an identity assessment was conducted by the Department. The Department has not raised any concerns regarding the authenticity of the applicant’s passport or the veracity of the applicant’s claimed identity. I have no reason to doubt his claimed identity. As noted above I accept the applicant’s claimed identity.
The applicant provided a clear and coherent account of his life and the events leading up to his departure from Malaysia. The applicant described his circumstances following him completing high school in Sabah, Malaysia. The applicant stated that he worked in Kota Kinabalu for approximately two years before moving to [Country 1] to pursue greater employment opportunities. He explained that it was in [Country 1] he was first exposed to ‘clubbing’ and ‘partying’. He said that he attended night clubs in [Country 1], and this was where the applicant first became accustomed with the ‘night social life’. The applicant explained that his experiences in [Country 1] shaped the way he behaved and socialised upon return to Kota Kinabalu in approximately 2010, including his regular attendance at bars and clubs, and maintaining an active social life.
He explained that the way he behaved and interacted with people changed during his time in [Country 1] and upon returning to Kota Kinabalu in 2010. He said that he became open minded and respected the decisions of other people and the way they wanted to live their lives. He said that he was a Muslim (and continued to adhere to the Islamic faith) but he is not a strict Muslim. He said that allowed him to be more accepting of people’s differences including their sexuality. The applicant said that he also became more open minded to new experiences.
The applicant stated that he worked in [an industry] on return to Malaysia and was able to earn a good income. He stated that he had a lot of disposable income in Malaysia and generally a good life before he discovered and accepted his sexuality. He stated that he was from a conservative religious family who looked down on him for being an open-minded person since his return to Malaysia in 2010. He explained that he does not have regular contact with his family and that his claimed sexuality and his outgoing lifestyle are not things that he can discuss with his family. He said that while his family members were aware of him being friends with people who drink and socialise in ways that they would not, he had to keep secret the fact that he had very much adopted such a lifestyle himself. He explained that it was not even possible for him to contemplate revealing his sexuality to this family as they are strict Muslims.
I accept the above matters to be true.
Is the applicant a bi-sexual man?
The applicant claims to be a bi-sexual man who was in a secret romantic relationship with a man (Mr A) while in Malaysia. He claims that he was attacked outside of a LGBT nightclub in Kota Kinabalu called [Bar 1] which led to him leaving Malaysia a few months later. The applicant provided detailed, coherent and spontaneous evidence in relation to these claimed events over two days of hearing. I found the applicant to be a credible witness whose oral evidence was consistent with his written evidence. He was visibly distressed at times when giving evidence in relation to the more traumatic events of his life, despite that distress, the applicant was able to provide a coherent recount of his experiences and coming to terms with his sexuality.
The applicant explained that he did not fully recognise his true sexuality until his first sexual encounter with a man Mr A in approximately 2016. He put this down largely to his conservative religious family. He stated that he had always felt comfortable around men and there was an underlying level of attraction towards men, however he did not consider himself as being a bi-sexual or gay man. He stated that he simply thought it was normal and that he was a heterosexual man.
The applicant explained in detail how he ended up going to gay bars in Kota Kinabalu, how he befriended people from the LGBT community, and how his first sexual encounter with Mr A occurred. He also explained that those members of LGBT community had to always conceal their true sexual orientation except when they are alone with other LGBT people. He said that there are some people who don’t care about other people’s sexuality but that was rare. He said that most people disliked LGBT people even if they didn’t attack, harass or vilify them, he said that this meant that the members of the LGBT community had to keep their sexuality and gender identities secret.
He explained that he met Mr A through his work a few years prior to 2016, and developed a close friendship. During several points of the hearing, the applicant said that he was the sort of person who liked to try new things and experiment. The applicant stated that while he was open minded, and open to trying new things, at first, he was reluctant to attend [Bar 1] when Mr A suggested that they attend in 2016. He said that he did not recognise sexual attraction to Mr A prior to their first sexual encounter. He explained in detail his first sexual encounter with Mr A occurred in the context of them both being intoxicated and substance affected.
The applicant stated that he was afraid to continue a relationship with Mr A, even in secret, after their first sexual encounter. He said that he was afraid of being attacked, vilified, harassed and excluded from employment. He said that he was afraid of being targeted by the authorities if it was discovered that they had engaged in sexual activity. He said that he was afraid to embrace his sexuality. However, he said he could not avoid Mr A as they worked together, and their broader social circles socialised together. The applicant stated that his lead to them spending more time together and eventually developing an open relationship (where they also had sex with other men).
The applicant stated that he lost interest in his female partner at the time as he preferred to be with Mr A and other men, but he couldn’t separate because he was afraid of being exposed as a gay man and harmed for that reason. He stated that he spent a lot of time with Mr A because he wanted to be with Mr A, but he was severely distressed by the prosect of someone finding out about their relationship. He said that he was worried that there were rumours and gossip about Mr A and him being more than just friends, even though he was outwardly in a relationship with a woman.
The applicant showed horizontal scars on his left wrist which appeared to be scars of self-harm. The applicant stated that it was a bad period of him coming to terms with his sexuality and fears of others finding out that led to him self-harming. He said that he could not think clearly and thought that he was better off dead. However, Mr A supported him through that bad period and saved his life. He said that is why he can never forget Mr A.
The applicant stated that he continues to attend gay bars and LGBT events in Melbourne, but he has not formed a serious relationship with anyone. He said that he met men at gay bars and hired men for sex through a website called “[name]” while in Australia, however he was not able to form the type of connection he had with Mr A and therefore he has not been in a serious relationship with anyone since arriving in Australia. The applicant provided evidence of his attendance at LGBTI events and Melbourne gay bars following the hearing, these include screenshots of email ticket confirmations, photos of him at LGBT festivals and evidence of a transaction at a gay night club [Club 1] in Melbourne. Given the applicant’s past behaviour and the detailed oral evidence he provided in relation to the reasons why he engaged in such conduct, I am satisfied that the applicant engaged in such conduct for reasons other than for the purpose of strengthening his claims to be a refugee.
Overall, I find the evidence in relation to the applicant’s sexuality reliable. I accept that the applicant is a bi-sexual man as stated. I also accept that he now has a greater desire to pursue sexual relationships with men than with women, and I accept his stated desire to pursue a romantic relationship with a man when he finds the right person.
Was the applicant attacked outside a gay bar in Kota Kinabalu as claimed?
The applicant also provided clear, consistent and coherent evidence in relation to a time when he was attacked outside a gay bar in Kota Kinabalu. The applicant stated that he stopped attending gay bars following the attack and decided to leave the country as he no longer felt safe in Malaysia. The applicant showed scars and claimed that the scars were a result of the attack he endured. The applicant stated that he did not make a police report following the attack as it occurred outside of a gay bar. He said that he did not want his friends and family asking questions about what he was doing outside of a gay bar. I found the applicant to be a credible witness and his detailed evidence in relation to the attack convincing. I accept these matters to be true.
The applicant stated that he suspected the attack was carried out by a person hired by the applicant’s ex-partner’s brother. He said that the ex-partner’s brother is well connected and was high up in an Islamic [NGO]. When asked the reasons for his suspicion, the applicant stated that it was because his ex-partner had asked (prior to the attack) if he had been going to bars and clubs at night which he denied. I find the applicant linking his ex-partner to the attack entirely speculative and am not satisfied that the applicant’s ex-partner’s brother was involved in the attack. Therefore I am not satisfied that there is a real risk of harm to the applicant from his ex-partner’s brother on return to Malaysia.
The country information before the Tribunal including the most recent DFAT country information report on Malysia confirm prevailing societal attitudes and those of the authorities (including syariah courts) around the time of the incident were overwhelmingly anti-LGBTI.[1] The available country information also indicates the prevalence of societal violence against individuals perceived to be LGBT during the time of the attack.[2]
Are the applicant’s fears of persecution well founded?[1] See for example DFAT country information report on Malaysia on 24 June 2024, 3.131 indicating “In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex”; and the Malaysian tourism minister claiming that there are no gay people in Malaysia - There are no gay people in Malaysia says tourism minister | CNN ( Also See DFAT country information report on Malaysia on 13 December 2019, 3.141.
[2] DFAT country information report on Malaysia on 13 December 2019, 3.141
Given my above findings, I accept that the applicant would pursue sexual and romantic relationships with men should he be free from fear of harm on return to Malaysia.
I have considered the country information summarised in paragraphs 27 to 50 of a decision by this Tribunal, differently constituted, in the matter AATA 1906121. I have also considered the sources cited[3] and agree with the Tribunal’s summary in that case. Broadly, the country information confirms that there is a real chance of members of the LGBTI community (and relevantly, men who engage in sexual relationships other than heterosexual relationships) being subjected to serious harm such as physical violence, forced ‘re-education’, exclusion from public spaces and employment opportunities and other more general societal violence. I find that such conduct would constitute serious physical harm and harassment and meets the definition of ‘serious harm’ contained in s 5J(5) of the Act.
[3] Including the most recent DFAT country information report on Malaysia dated 24 June 2024.
It is well established principle that membership of the LGBT community in each country can constitute a particular social group of people.[4] Having accepted the applicant is a bi-sexual man, and that he would pursue sexual and romantic relationships with men in Malaysia, I am satisfied that the applicant is a member of the particular social group of people “LGBT people in Malaysia”. The applicant’s membership of this particular social group of people is plainly the essential and significant reason for the harm that would likely befall the applicant on return to Malaysia, therefore he meets the criterion set out in s 5J(1)(a) of the Act.
[4] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
The types of harm described above are perpetrated by the would-be persecutors against LGBT people in Malaysia motivated by anti-LGBT beliefs. The harm is targeted and involves systematic and discriminatory conduct and is not one that is faced by the population generally. The applicant meets the criterion set out in s 5J(4)(c) of the Act.
Given the harm that the applicant fears for these reasons is from the state (among others) and the country information indicating the prevailing societal views (including those of the authorities) being anti-LGBT, I am not satisfied the effective protection measures as per s 5LA are available to the applicant in his home area of Sabah or anywhere else in Malaysia. I find that the applicant would not be able to access effective protection if returned to Malaysia for the purposes of s 5LA(2).
Considering the available country information and matters discussed above, I also accept that the real chance of persecution relates to all areas of Malaysia and therefore the applicant satisfies the criterion in s 5J(1)(c) of the Act.
There are no reasonable modifications to the applicant’s behaviour which he may make to avoid a real chance of persecution. The applicant cant not be expected to alter his sexual orientation or gender identity or conceal his true sexual orientation or gender identity as per s 5J(3)(c)(vi). Therefore s 5J(3) does not apply.
It follows that the I accept the applicant has a well-founded fear of persecution for the purposes of s 5J. In considering whether he comes within the definition of a refugee contained in s 5H, I accept that he is outside the country of his nationality (Malaysia) and unable to return to it owing to his well-founded fear of persecution. Therefore he meets the criteria in s 5H(1). There is no information before me to indicate that any of the exclusions set out in s 5H(2) apply. I find that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.
There is nothing before me to indicate that the applicant has the right to enter and reside in another country, I find that s 36(3) of the Act does not apply to the applicant.
For the reasons given above, the I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing Dates: 16 January 2025, 26 March 2025.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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